Visualizing an International Human Right to Self-Sufficiency

Transcript

VISUALIZING AN INTERNATIONAL HUMAN
RIGHT TO SELF-SUFFICIENCY
Haley Palfreyman Jankowski*
More than half a century ago, the United Nations General Assembly
adopted a set of standards and rights to institute global protections. State
leaders believed that these international human rights were basic rights
that all people deserved and needed. Over the years, new rights have
grown from the original rights as necessary additions to international
human rights law. One such emerging right has been inferred from other
widely recognized human rights, but it has never been explicitly
recognized. That right is the international right to live in an environment
of self-sufficiency.
This article discusses how this right fits in the overall human rights
regime. It analyzes the basic contours of the right and presents potential
frameworks for its global implementation. Finally, this article
hypothesizes the contours and limits of this emerging human right by
recognizing and addressing possible legal problems that could arise with
enforcing this right in the United States. The right to self-sufficiency has
begun materializing in recent years, and people everywhere should be
able to implement aspects of a self-sufficient lifestyle.
INTRODUCTION .......................................................................................... 112
I. INTERNATIONAL HUMAN RIGHTS AND THEIR IMPLEMENTATION
PROCESS................................................................................................ 115
A. Where the Right to Self-Sufficiency fits into International
Human Rights Law ................................................................... 116
B. General Duties of Individual State Governments Regarding
International Human Rights ...................................................... 118
II. THE RIGHT TO SELF-SUFFICIENCY: ORIGIN, CONTOURS, AND
INTERNATIONAL IMPLEMENTATION PROCESS ...................................... 121
A. Textual Support for the Right to Self-Sufficiency ...................... 122
B. Contours of the Right to Self-Sufficiency................................... 124
C. State Duties for a Right to Self-Sufficiency and the Right’s
International Implementation....................................................... 125
* Associate, Orrick, Herrington & Sutcliffe, LLP. J.D. April 2014, J. Reuben
Clark Law School, Brigham Young University. Ms. Jankowski thanks Professors Aaron
Nielson and Eric Jensen for their guidance and revisions provided in the preparation of
this article, and, as always, she thanks her family for their love and support.
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1. State Responsibilities for the Implementation and
Preservation of the Right to Self-Sufficiency ................... 125
2. International Implementation: Hurdles and Solutions ........ 129
III. POTENTIAL LEGAL CLASHES WITH DOMESTIC IMPLEMENTATION OF
THE RIGHT TO SELF-SUFFICIENCY ......................................................... 132
A. Food and Water Storage and Collection ..................................... 133
B. Fuel and Energy Storage ............................................................. 136
C. Agriculture and Livestock Cultivation ........................................ 138
CONCLUSION ............................................................................................. 143
INTRODUCTION
Until recently, Luki Muia was a poor Kenyan farmer, struggling to
keep eight cows that produced barely enough milk for her and her
family’s survival.1 Now with the help of the public-private partnership,
USAID, she has received seeds, tools, and training to start banana and
mango farms, expanded her dairy farm, and emerged from the
generational poverty her family has lived through for so many years.2
With her newfound income, Luki is now able to provide for her family’s
basic needs by securing their health care and schooling.3 In the summer
of 2013, various American farmers began working to help their peers all
around the world, like Luki in Machakos, Kenya, produce their own food
and become more self-sufficient.4
A year earlier and halfway around the world, Hurricane Sandy hit the
northeast coast of the United States, causing more than fifty million
dollars in property damage5 and killing 117 Americans.6 But one family
1. Taking the Steps to Self-Sufficiency: With the Right Resources and Training,
Farmers Have Chance to Prosper, USAID, http://www.usaid.gov/results-data/successstories/taking-steps-self-sufficiency (last visited Nov. 22, 2015).
2. Id.
3. Id.
4. Id.
5. David Porter, Hurricane Sandy Was Second-Costliest in U.S. History, Report
Shows, HUFFINGTON POST, Feb. 12, 2013,
http://www.huffingtonpost.com/2013/02/12/hurricane-sandy-secondcostliest_n_2669686.html (“[The National Hurricane Center] report estimated damage
caused by Sandy at $50 billion, greater than any U.S. hurricane except Katrina . . . .”).
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living on the New Jersey coast rode out the storm successfully in an
insulated, concrete home.7 The Sochacki family had built this home for
the wife’s mother in 2003, right next door to their own home on Union
Beach.8 Because of their investment, the concrete house sheltered the
whole family and survived the storm.9 It endured as the only standing
individual home along that beach.10
Two vastly different stories affected by two vastly different
challenges; but, the common thread that ties the two together is the
individual investment in self-reliant survival strategies. These two stories
provide perfect examples of why all people regardless of country, creed,
or culture deserve and need a right to live in a self-sufficient
environment. People worldwide will thrive when they can implement
aspects of a self-sufficient lifestyle. If, in either case, state governments
would have unreasonably restricted these families’ life-saving practices
or allowed private parties to do so, then Luki Muia’s family could have
6. Mary Casey-Lockyer & Rebecca J. Heick, Deaths Associated with Hurricane
Sandy—October-November 2012, CENTERS FOR DISEASE CONTROL AND PREVENTION
(“CDC”) (May 24, 2013), available at
http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6220a1.htm. More recent reports
show that conditions for many Sandy victims have seen almost no improvement. John
Maxfield, Hurricane Sandy, One Year Later: Assessing the Economic Cost, DAILY
FINANCE (Oct. 26, 2013), available at http://www.dailyfinance.com/on/hurricane-sandyanniversary-economic-cost/ (noting that a year after Sandy, “thousands of people are still
displaced from their homes”).
7. Sherry Boyd, Sandy Survivor: A Beachfront ICF Home Still Provides Shelter
for the Owner, CONCRETE HOMES MAGAZINE (Mar. 2013), available at
http://www.concretehomesmagazine.com/sandy.php.
8. Id.; see Hurricane Sandy: A Story of Survival, YOUTUBE (Oct. 23, 2013),
https://www.youtube.com/watch?v=xbCCwTlJdgU.
9. Id. For raw footage filmed by a member of the Sochacki family of the waves
outside their home, see Hurricane Sandy Storm Footage (Union Beach, NJ), YOUTUBE
(Oct. 29, 2012), https://www.youtube.com/watch?v=ady9mc7fdTU.
10. Id.; see also Christopher Weaver, Waves of Hope in a Beach Town, WALL
STREET JOURNAL, Nov. 2, 2012,
http://online.wsj.com/news/articles/SB10001424052970204846304578095290218153654
(“The beach-front home of 60-year-old John Seth Sochacki III—with its view of
Manhattan across the Raritan Bay—was among those worn down to its foundations by
the surging ocean waters. His mother-in-law’s storm-proofed house next door was still
standing.”).
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starved and the Sochacki family would have been left with no shelter in
the aftermath of Hurricane Sandy.11
Due to the growing need for its recognition, the right to selfsufficiency is emerging from its implicit textual origins in international
treaties.12 Without this right, state governments can infringe on people’s
ability to live self-sufficiently and prepare themselves for potential
disasters without fear of any repercussion.13 The contours of this right
can be delineated into three distinct categories:
(1) Food and Water storage and collection;
(2) Fuel and Energy storage;
(3) Agriculture and Livestock cultivation.
11. See Casey-Lockyer & Heick, supra note 6; Boyd, supra note 7. “[With] 85
percent of our nation’s critical infrastructure . . . controlled not by government but by the
private sector, private-sector civilians are likely to be the first responders in any future
catastrophes.” Nat’l Comm’n on Terrorist Attacks Upon the United States, FINAL REPORT
OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES 317
(New York: W.W. Norton & Company, 2004) (emphasis added). Further, “[i]t is the
person whose family is safe and secure who is able to volunteer at a disaster relief center”
and make up this much needed army of first-responders. Steven P. Bucci et al., After
Hurricane Sandy: Time to Learn and Implement the Lessons in Preparedness, Response,
and Resilience, THE HERITAGE FOUNDATION (Oct. 24, 2013),
http://www.heritage.org/research/reports/2013/10/after-hurricane-sandy-time-to-learnand-implement-the-lessons. Therefore, American communities need to be better prepared
to handle major events like Hurricane Sandy, and the government should strive to change
the current mindset of disaster response from over-federalization to civil society. See
DHS Center for Faith-Based & Neighborhood Partnerships, DEPARTMENT OF HOMELAND
SECURITY, http://www.dhs.gov/dhs-center-faith-based-neighborhood-partnerships (last
visited Mar. 13, 2015).
12. See infra Part I.B.
13. See, e.g., Alton Lu, The National Defense Authorization Act: Our
Disappearing Rights and Liberties, HUFFINGTON POST, Jan. 3, 2012,
http://www.huffingtonpost.com/alton-lu/the-national-defense-auth_b_1180869.html
(quoting Senator Rand Paul’s assertion that: “[i]ssues such as having an armed weapon or
having a food supply lasting at least seven days can be grounds for terrorism”);
Communities Against Terrorism: Potential Indicators of Terrorist Activities Related to
Military Surplus Stores, FBI,
http://info.publicintelligence.net/FBI-SuspiciousActivity/Military_Surplus.pdf
(last
visited Oct. 28, 2013).
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These three categories embody the basic pillars of the right to selfsufficiency because they cover the foundational physiological needs of
all people.14 In sum, the international human right to self-sufficiency
finds its origin in the text of various international treaties, is emerging as
an international human right, and can be described as protecting three
primary categories of self-sufficient living.
The remainder of this article proceeds as follows. Part I briefly
reviews the history of international human rights law and reviews general
state enforcement duties and various proposals. Part II shows where the
right to self-sufficiency fits in the overall human rights regime, analyzes
the basic contours of the right, and presents potential frameworks for its
global implementation. Part III hypothesizes the contours and limits of
this emerging human right by recognizing and addressing possible legal
problems that could arise with enforcing this right in the United States.
Part V briefly summarizes and concludes.
I. INTERNATIONAL HUMAN RIGHTS AND THEIR IMPLEMENTATION
PROCESS
The international human right to self-sufficiency is based within
various public international law treaties, and the necessity for its
widespread recognition grows with each passing year. International
scholars have often referred to the value of individual self-sufficiency
when discussing other rights—like the right to self-determination.15 But
this article is the first to both identify and define a human right to live in
a self-sufficient environment, as more than a mere rationale for another
14. See A.H. Maslow, A Theory of Human Motivation, 50 PSYCHOL. REV. 370,
372–75 (1943), available at http://psychclassics.yorku.ca/Maslow/motivation.htm (last
visited Mar. 13, 2015). See also infra Part II.A-B.
15. See, e.g., Jerome Wilson, Ethnic Groups and the Right to Self-Determination,
11 CONN. J. INT’L L. 433, 477 (1996) (discussing the right to self-determination in the
context of recognizing the independence of developing secessionist countries—”‘if selfdetermination does not extend beyond colonialism, self-determination is in danger of
losing its relevance as a principle of international law’”); The Honourable Michael Kirby,
AC CMG, Human Rights and Bioethics: The Universal Declaration of Human Rights
and UNESCO Universal Declaration of Bioethics and Human Rights, 25 J. CONTEMP.
HEALTH L. & POL’Y 309, 324 (2009) (stating that the idea of human dignity can, at times,
“encourage a form of paternalism, incompatible with the very spirit of self-determination
that lies at the heart of international human rights”) (emphasis added).
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well-recognized right. This section outlines a brief overview of the
history of international human rights law and discusses existing
international implementation frameworks that could be used in the right
to self-sufficiency’s gradual progression.
A. Where the Right to Self-Sufficiency fits into International
Human Rights Law
The primary spark for the Human Rights movement of the 20th
century “arose out of the horrors of the Second World War and the
Holocaust.”16 Once such horrors were exposed to the world, the
international populace became justifiably concerned about the risk of
state abuse.17 This pervasive concern prompted a widespread desire to
codify basic human rights that individuals held—no matter their state,
race, gender, or creed—against their governments.18 These rights include,
for example, the inherent rights to life, liberty, freedom of expression and
the rights to work, to social security and insurance, and to an adequate
standard of living. These rights were initially documented in the
Universal Declaration of Human Rights.19 Later they were codified in the
two primary international human rights treaties: the International
Covenant on Civil and Political Rights (“ICCPR”)20 and the International
Covenant on Economic, Social and Cultural Rights (“ICESCR”).21 Far
from being static documents, these treaties are constantly evolving.22
16. Molly Beutz Land, Protecting Rights Online, 34 YALE J. INT’L L. 1, 7 (2009)
(citing ANTHONY D’AMATO, INTERNATIONAL LAW: PROCESS AND PROSPECT 89 (1987)).
17. See id.
18. See id.
19. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc.
A/RES/810 (Dec. 10, 1948).
20. International Covenant on Civil and Political Rights, adopted Dec. 16, 1966,
999 U.N.T.S. 171 (entered into force Mar. 23, 1976) [hereinafter ICCPR].
21. International Covenant on Economic, Social and Cultural Rights, adopted
Dec. 16, 1966, 993 U.N.T.S. 3 (entered into force Jan. 3, 1976) [hereinafter ICESCR].
22. See, e.g., The Universal Declaration of Human Rights: A Living Document,
“Enduring Relevance” ¶ 2,
http://www.un.org/en/events/humanrightsday/udhr60/declaration.shtml (last visited Mar.
13, 2015); John Henry Stone, The International Covenant on Civil and Political Rights
and the United States Reservations: The American Conception of International Human
Rights, 7 U.C. DAVIS J. INT’L L. & POL’Y 1, 38 (2001) (“The ICCPR is a living document,
and its standards will evolve over time through [Human Rights Committee]
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Various United Nation (“U.N.”) committees meet throughout the year
to monitor the implementation of the codified rights in the nations that
have signed and ratified the treaties. For instance, the Committee on
Economic, Social and Cultural Rights (“CESCR”), established in 1985,
is a “body of 18 independent experts that monitors implementation of the
[ICESCR] by its States parties,” or member states.23 The United Nations
Human Rights Committee, also a body of 18 experts that meets several
times each year, monitors the 162 member states on their compliance
with the ICCPR.24
The widely understood purpose of human rights is to protect people
from state actions that infringe on the bare necessities of life.25 So “the
state is not only the ‘primary guarantor of human rights,’ it is also ‘the
basic target for international human rights law.’”26 Thus, human rights
must be documented and widely recognized to prevent states from
interpretation.”); Nathan Crombie, A Harmonious Union? The Relationship Between
States and the Human Rights Committee on the Same-Sex Marriage Issue, 51 COLUM. J.
TRANSNAT’L L. 696, 722 (2013) (pointing out that rather than using a narrow
interpretation of international treaties, “[a] preferable approach . . . would treat the
ICCPR as a ‘living document that is capable of responding to the changing norms and
values of society’”) (quoting Human Rights Law Resource Centre, Marriage Equality—A
Basic Human Right: Submission to the Inquiry into the Marriage Equality Amendment
Bill 2009, ¶ 17 (Aug. 2009), http://www.hrlrc.org.au/files/HRLRC-Submission-onMarriage-Equality.pdf); Danielle M. Conway, Indigenizing Intellectual Property Law:
Customary Law, Legal Pluralism, and the Protection of Indigenous Peoples’ Rights,
Identity, and Resources, 15 TEX. WESLEYAN L. REV. 207, 230 (2009) (identifying the
Declaration of the Rights of Indigenous Peoples—a recent international treaty created to
fill certain gaps in the ICESCR—as a “living document”) (citing United Nations
Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. GAOR, 61st
Sess., at pmbl., (Sept. 13, 2007)).
23. Committee on Economic, Social, and Cultural Rights, UNITED NATIONS
HUMAN RIGHTS: OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS,
http://www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCRIndex.aspx (last visited Mar.
13, 2015).
24. Human Rights Committee, UNITED NATIONS HUMAN RIGHTS: OFFICE OF THE
HIGH COMMISSIONER FOR HUMAN RIGHTS,
http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx (last visited Mar. 13,
2015).
25. Makau Mutua, Standard Setting in Human Rights: Critique and Prognosis,
29 HUM. RTS. Q. 547, 550 (2007) (“[I]ndividual rights act as a bar against the despotic
proclivities of the state.”).
26. Land, supra note 16, at 7–8 (quoting Mutua, supra note 25, at 550).
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violating the rights of people within their borders and also to require
states to protect those rights.27
B. General Duties of Individual State Governments Regarding
International Human Rights
Once human rights are documented and recognized as rights in the
international community, state governments are responsible for
implementing and fulfilling those rights in their nations.28 These rights
can either be positive or negative rights.29
ICESCR rights are positive rights, requiring state governments to take
affirmative actions to ensure those rights’ implementation.30 Each state
thus has an obligation not only to execute international human rights but
also to prevent private parties from violating those rights.31 This means
that state governments can violate the right with both direct action and
indirect action or inaction.32 For example, governments could directly
27. See Lu, supra note 13.
28. Government Obligations, HUMAN RIGHTS ADVOCACY AND THE HISTORY OF
INT’L HUMAN RIGHTS STANDARDS,
http://humanrightshistory.umich.edu/accountability/obligationr-of-governments/
(last
visited Oct. 23, 2015); International Human Rights Law, UNITED NATIONS HUMAN
RIGHTS OFFICE OF THE HIGH COMM’R FOR HUMAN RIGHTS,
http://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx (last visited
Oct. 23, 2015).
29. Dinah Shelton & Ariel Gould, Positive and Negative Obligations, in THE
OXFORD HANDBOOK OF INTERNATIONAL HUMAN RIGHTS LAW, (Dinah Shelton ed., 562-65
2013).
30. Ann M. Piccard, The United States’ Failure to Ratify the International
Covenant on Economic, Social and Cultural Rights: Must the Poor Be Always with Us?,
13 SCHOLAR 231, 240–41 (2010) (stating that if ratified by the United States, “the
ICESCR would provide a comprehensive set of positive rights that would . . . establish a
framework for decisions about what the poor in this country need in order to live
meaningful lives”); Hoffman, infra note 36, at 172.
31. See, e.g., U.N. Econ. & Soc. Council [ECOSOC], General Comment No. 14:
The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4 (Aug.
11, 2000) (committee enforcing the ICESCR by requiring states to respect, protect, and
fulfill international human rights).
32. See Michelle Foster, Protection Elsewhere: The Legal Implications of
Requiring Refugees to Seek Protection in Another State, 28 MICH. J. INT’L L. 223, 276
(2007) (“Such non-refoulement obligations apply irrespective of whether serious
violations of those rights guaranteed under the Convention originate from non-State
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violate the international right to health by “preventing dissemination of
health information or putting up roadblocks preventing access to
hospitals.”33 “Other violations—such as not having access to health
insurance—may constitute indirect threats.”34 Additionally, state
governments could violate one’s right to work by failing “to take positive
measures” for its realization or by failing to “protect refugees from
violations of their right to work and rights at work by private actors.”35
ICCPR rights are negative, unlike the positive rights recognized by
the ICESCR.36 “Negative rights are rights to be free of interference from
other people and from the government . . . .”37 To violate a negative right,
the government must merely refrain from “restricting the activities of the
rights holders,” but they need not take affirmative actions to ensure these
rights’ exercise.38 Typical negative rights cover “areas such as political
debate and religious worship.”39 One scholar looked to the Chinese
government for an example of a state’s violation of the ICCPR: “First,
consider China. The Chinese government violates human rights. It
actors or whether such violations are directly intended or are the indirect consequence of
action or inaction.”).
33. Mariah McGill, The Human Right to Health Care in the State of Vermont,
VT. B.J., Summer 2011, at 28.
34. Jean Connolly Carmalt, Holding the U.S. Accountable: How American
Health Care Fails to Meet International Human Rights Standards, 11 N.Y. CITY L. REV.
359, 375 (2008) (citing INST. OF MED., Insuring America’s Health: Principles and
Recommendations (2004)).
35. Colloquium, The Michigan Guidelines on the Right to Work, 31 MICH. J.
INT’L L. 293, 303 (2010).
36. Geoffrey A. Hoffman, In Search of an International Human Right to Receive
Information, 25 LOY. L.A. INT’L & COMP. L. REV. 165, 170–72 (2003) (“In contrast to the
negative rights embraced by the ICCPR, the International Covenant on Economic, Social
and Cultural Rights enumerates a number of affirmative rights.”); Eric A. Posner, Human
Welfare, Not Human Rights, 108 COLUM. L. REV. 1758, 1764 (2008) (“The ICCPR is a
charter of negative rights, whereas the ICESCR is a charter of positive rights.”); But see
Rhonda Copelon, The Indivisible Framework of International Human Rights: A Source of
Social Justice in the U.S., 3 N.Y. CITY L. REV. 59, 65 (1998) (stating that while ICCPR
rights represent “the closest parallel to the negative rights approach of the U.S.
Constitution,” these rights require more from state governments than simply a lack of
interference—rather, “[t]he ICCPR binds states not only to ‘respect’ but also to ‘ensure’
the enjoyment of these rights”).
37. Posner, supra note 36, at 1764.
38. Id. at 1765.
39. Id.
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suppresses political dissent, censors the press, deprives people of fair
trials, and harasses religious minorities.”40
Regardless of whether rights are positive or negative, another
component of state implementation responsibilities concerns the extent to
which state governments are compelled to ensure the right’s
implementation and how fast they must do so. The ICCPR “imposes an
immediate obligation ‘to respect and to ensure’ the rights it proclaims
and to take whatever other measures are necessary to bring about that
result.”41 But a state’s enforcement obligations under the ICESCR are
flexible according to available resources, including financial and
natural.42 This means that despite a right’s clear status as an ICESCR
right, state governments are only required to begin a gradual enforcement
of that right.43 But to the extent that the states can fulfill the right, they
are obligated to implement it as they are able.44 Then again, even the
“immediate” requirement under the ICCPR only obligates state
governments to put forth their best efforts, reducing the state’s
obligations.45
With each treaty, the ICCPR and the ICESCR, state governments are
expected to take some affirmative steps to implement the rights included
therein, even if it takes time. But the international expectations for state
governments’ vigilance in implementing the right will vary with the
degree of each state’s development.46 Professor Pierre-Marie Dupuy
states that various factors should be taken into consideration when
determining what “degree of vigilance” is required of each government.47
40. Id. at 1776 (explaining that despite these clear human rights violations, the
Chinese “government is also responsible for the greatest enhancement of human welfare
in recent history”).
41. THOMAS BUERGENTHAL ET AL., INTERNATIONAL HUMAN RIGHTS IN A
NUTSHELL 48-49 (2002).
42. ICESCR, supra note 21, art. 2(1) (requiring states “to take steps . . . to the
maximum of its available resources with a view to achieving progressively the full
realization of the rights recognized in the [ICESCR]”).
43. Id.
44. Id.
45. See Pierre-Marie Dupuy, Due Diligence in the International Law of Liability,
in LEGAL ASPECTS OF TRANSFRONTIER POLLUTION 369 (1977).
46. Id. at 375-76.
47. Id. at 374.
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Stephen C. McCaffrey applies this idea to the international right to water
by concluding:
[W]hile a state could not be held legally responsible for a natural
disaster such as a drought, it might be found not to have exercised due
diligence if it did not have the legal, administrative and logistical
infrastructure in place to deal with the consequences of the drought that
a state in its circumstances and with its capabilities could be expected
to have.48
The basic point being, states’ implementation obligations for
international human rights vary depending on the circumstances. The
degree of a state’s responsibilities depends on the nature of the right
(positive or negative), the treaty under which the right was created
(ICCPRquick
implementation;
ICESCRmore
gradual
implementation), and the individual state’s current capacity and
capability to implement elements of each right.
II. THE RIGHT TO SELF-SUFFICIENCY: ORIGIN, CONTOURS, AND
INTERNATIONAL IMPLEMENTATION PROCESS
Currently, this emerging right faces many unknowns. While it is hard
to predict exactly how the right to self-sufficiency will play out on an
international stage, much information is already discoverable. The right
to self-sufficiency’s origins can be ascertained from the text of
international law treaties. Its general contours can be inferred from the
physiological needs of all people. And the mirror image of its overall
implementation process (including various state responsibilities to ensure
the right’s fulfillment) can be seen in other various emerging human
rights. This section discusses each of these subjects—textual origins,
contours, and international implementation process—respectively to
show how the right to self-sufficiency fits within the body of
international human rights law.
48. Stephen C. McCaffrey, A Human Right to Water: Domestic and International
Implications, 5 GEO. INT’L ENVTL. L. REV. 1, 14 (1992-1993).
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A. Textual Support for the Right to Self-Sufficiency
Textually, the right to live in an environment of self-sufficiency finds
its basis in several recognized international human rights, such as “the
right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical
care.”49 With natural disasters on the rise globally,50 self-sufficiency is an
integral part of achieving these international social, economic, and
cultural rights.
Although the right to self-sufficiency is more similar to the rights
annunciated in the ICESCR, it also is justified and supported by language
in the ICCPR. Article 6 of the ICCPR recognizes the “inherent right to
life.”51 The text of Article 6 focuses primarily on a citizen’s right not to
be killed or “arbitrarily deprived of his life,”52 but members of the
Human Rights Committee53 and even the Committee as a whole have
49. Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d
Sess., U.N. Doc A/810 (Dec. 10, 1948) [hereinafter the Declaration]; see also ICESCR,
supra note 21, art. 1, 6, 9, 11, 13, & 15(a) (rights to self-determination, work, social
security, an adequate standard of living, education, and to take part in cultural life).
50. Natural Disasters: Counting the Cost of Calamities, The ECONOMIST, Jan. 14,
2012, at 60, available at http://www.economist.com/node/21542755 (recording ninetynine federally declared major disasters in the U.S. alone). In the last three decades, the
U.S. has sustained 178 weather-related, billion-dollar natural disasters—named so
because damages either reached or exceeded $1 billion. NATIONAL OCEANIC AND
ATMOSPHERIC ADMINS (“NOAA”), Billion Dollar U.S. Weather Disasters,
http://www.ncdc.noaa.gov/billions/events (last visited Mar. 13, 2015). Of these 141
disasters, 75 have occurred since 2000 and 55 have occurred since 2005. Id. Outside the
U.S., clearly in recent years, disasters are increasing both in frequency and in magnitude.
Internationally, natural disasters in the twenty-first century have had a colossally harsh
effect, causing $1.7 trillion in damage, affecting 2.9 billion people, and taking 1.2 million
lives. THE UNITED NATIONS OFFICE FOR DISASTER RISK REDUCTION, Disaster Impacts /
2000–2012 (Mar. 12, 2013),
http://www.preventionweb.net/files/31737_20130312disaster20002012copy.pdf.
51. ICCPR, supra note 20.
52. Id.; see also Yoram Dinstein, The Right to Life, Physical Integrity, and
Liberty, in THE INTERNATIONAL BILL OF RIGHTS 114, 115 (L. Henkin ed., 1981) (stating
that “[t]he human right to life . . . is a civil right, and it ‘does not guarantee any person
against death from famine or cold or lack of medical attention’” and quoting N.
ROBINSON, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 106 (1958)).
53. Rosalyn Higgins, The United Nations: Still a Force for Peace, 52 MOD. L.
REV. 1, 4 (1989) (stating that “virtually all states have accepted that this broader reading
of Article 6 is possible”).
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noted the modern need to read that article broadly.54 While the
Committee argued for a broader reading of Article 6 by specifically
addressing states’ obligations to reduce the infant mortality rate and to
increase the average life expectancy—”especially in adopting measures
to eliminate malnutrition and epidemics”—these broad expressions of
states’ responsibilities to uphold the ICCPR right to life can also be
applied to the right to self-sufficiency.55
If state governments ensure that all people can maintain self-sufficient
practices, people will be able to successfully exercise their right to life
even in times of scarcity or disaster. Thus, “the right to life, in its modern
and proper sense, not only is protection against any arbitrary deprivation
of life upheld, but furthermore States are under the duty ‘to pursue
policies which are designed to ensure access to the means of survival’ for
all individuals and all peoples.”56 And the right to self-sufficiency comes
under the umbrella of ensuring people adequate “access to the means of
survival.”57
To clarify, the right to self-sufficiency is a positive right, which
imposes a duty on state governments to protect this right against private
deprivation and to take affirmative action to implement the right.58 But
self-sufficiency is distinguishable from other positive rights “because the
government need only enable the development of the right to self-
54. Human Rights Comm., General Comment No. 6: art. 6, ¶ 5 (16th Sess.,
1982), Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 127 (2003) [hereinafter
Comments of Human Rights Committee] (noting “that the right to life has been too often
narrowly interpreted”). The Human Rights Committee further stated “[t]he expression
‘inherent right to life’ cannot properly be understood in a restrictive manner, and the
protection of this right requires the States adopt positive measures.” Id.
55. Id.
56. Antonio Augusto Cancado Trindade, The Parallel Evolutions of International
Human Rights Protection and of Environmental Protection and the Absence of
Restrictions on the Exercise of Recognized Human Rights, 13 REVISTA I.I.D.H. 35, 54
(1991) (quoting B.G. Ramcharan, The Right to Life, 30 NETHERLANDS INT’L L. REV. 301,
302 (1983)).
57. See id.
58. Rhonda Copelon, The Indivisible Framework of International Human Rights:
A Source of Social Justice in the U.S., 3 N.Y. CITY L. REV. 59, 65–67 (1998) (discussing
the “dimensions” of state governments obligations to enforce positive human rights).
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sufficiency, rather than provide everything necessary for the selfsufficiency of its citizens.”59
B. Contours of the Right to Self-Sufficiency
Assuming that an international right to self-sufficiency is emerging
and exists in its preliminary stages, what would this right look like? The
right is best defined by breaking it into three distinct categories, which
make up the three primary components of the right to live in an
environment of self-sufficiency (the basic structure of the right):
(1) Food and Water storage and collection;
(2) Fuel and Energy storage;
(3) Agriculture and Livestock cultivation.
These three categories embody the basic pillars of the right to selfsufficiency because they cover the foundational physiological needs of
all people.60 Self-sufficiency has been generally defined as the ability “to
maintain oneself or itself without outside aid” or the “capab[ility] of
providing for one’s own needs.”61 Maslow’s Hierarchy of Needs is a
59. Haley Jankowski, An International Human Right to Self-Sufficiency, 29
EMORY INT’L L. REV. 2039, 2043 (2015), available at
http://law.emory.edu/eilr/content/volume-29/issue-3/recent-developments/internationalhuman-right-self-sufficiency.html.
60. See Maslow, supra note 14, at 372–75.
For our chronically and extremely hungry man, Utopia can be defined
very simply as a place where there is plenty of food. He tends to think
that, if only he is guaranteed food for the rest of his life, he will be
perfectly happy and will never want anything more. Life itself tends to
be defined in terms of eating. Anything else will be defined as
unimportant. Freedom, love, community feeling, respect, philosophy,
may all be waved aside as fripperies which are useless since they fail to
fill the stomach. Such a man may fairly be said to live by bread alone.
Id. at 374.
61. MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 1129 (11th ed. 2003). For a
general understanding of the understood ideals and goals of self-sufficiency, see Vicki
Mattern, Guide to Self-Sufficient Living: Advice from Nine Modern Homesteaders,
MOTHER EARTH NEWS, Feb./Mar. 2012, http://www.motherearthnews.com/homesteading-
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psychology theory that depicts the need hierarchy in a pyramid fashion,
suggesting that people must first fulfill basic needs before moving on to
more advanced needs.62 The foundational needs at the bottom of the
pyramid-hierarchy are the basic survival needs.63 Therefore, bringing the
two concepts together reveals that the right to “maintain oneself” or, in
other words, to survive without dependence on outside aid,64 is
essentially a right to take care of one’s basic physiological needs to
sustain life, including: food, water, and energy or fuel. The first two
overall categories of this right directly encompass these needs; the third
category, the right to sustain agriculture, is a less direct but a more
lasting assertion of the self-sufficiency rights to sustenance.
C. State Duties for a Right to Self-Sufficiency and the Right’s
International Implementation
Introducing an emerging international human right into states
worldwide is naturally a long and difficult process. First, the
international community must determine what each state’s obligations
are for the right’s implementation, including the speed and degree of
enforcement. Second, less developed nations will likely be hesitant about
adding obligations to their already overloaded national agendas, and for a
right to be successfully realized, its implementation must first be deemed
possible. This section begins with a discussion of the nature of state
responsibilities regarding the right to self-sufficiency. Next, it introduces
possible solutions to the arduous implementation process, especially for
poorer, developing states.
1. State Responsibilities for the Implementation and
Preservation of the Right to Self-Sufficiency
To the extent that the international community recognizes the right to
self-sufficiency, what are state governments compelled to do to enforce
and-livestock/self-reliance-zm0z12fmzkon.aspx#axzz2vxM0UsMS,
SUFFICIENT, Top 5 Reasons to be Self Sufficient (Feb. 11, 2013),
http://diysufficient.com/top-5-reasons-to-be-self-sufficient/.
62. See Maslow, supra note 14.
63. Id.
64. See MERRIAM-WEBSTER, supra note 61.
and
see
DIY
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this right? The previous section discussed the contours for this right in
more depth,65 but at the very least, the right to self-sufficiency would
have to include the ability of every citizen to cultivate the land he owns
according to his wish—so long as the agriculture contributes to his goal
of a self-sufficient lifestyle.66 Further, this right should include a citizen’s
right to collect and store reasonable amounts of water, food, and fuel to
prepare herself and her family for a disaster or shortage. And finally, this
right should include an individual’s right to raise livestock on his
property, so long as that livestock practice does not infringe upon the
property rights and privileges of his neighbors.
State governments can violate this right in a variety of ways. As
discussed previously, self-sufficiency, like other ICESCR rights, is a
positive right, requiring state governments to take affirmative actions to
ensure that their citizens can maintain a self-sufficient environment.67
State governments can therefore violate the right with both direct action
and indirect action or inaction.68 A direct violation would occur if the
government unreasonably infringed upon people’s right to farm their
own land or to store their own food or if the government established
impenetrable barriers to getting water collection or storage permits. The
government could indirectly violate the right to self-sufficiency by either
directly violating another human right that would lead to the violation of
the right to self-sufficiency or by permitting private parties to infringe
upon a person’s right to live self-sufficiently on his own property.69
Because the right to self-sufficiency is textually based in international
laws and treaties and is emerging as an independent right, the state has a
responsibility to prevent private parties from violating this right.70 The
65. See supra Part II.B.
66. Compare with Stephen C. McCaffrey, The Human Right to Water: Domestic
and International Implications, 5 GEO. INT’L ENVTL. L. REV. 1, 12–16 (1992) (discussing
the parameters of the international right to water, another emerging right similar to the
rights explicitly recognized in the ICESCR).
67. See supra Part II.A.
68. Id.
69. See, e.g., U.N. Educ., Scientific & Cultural Org. [UNESCO],
Recommendation on Participation by the People at Large in Cultural Life and Their
Contribution to It, Annex I, at 30 (Nov. 26, 1976), http://portal.unesco.org/en/ev.phpURL_ID=13097 (condemning obstacles to access to knowledge—concerning violations
of the right to internet—”whether they are of political or commercial origin”).
70. See Jankowski, supra note 59.
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127
right for all people to live in a self-sufficient environment is just as
necessary as their rights to food, water, and even life.
But to what extent are state governments compelled to ensure the
implementation of this right, and how quickly must they do so? The
ICCPR requires immediate obligation, while the ICESCR imposes a
more gradual and flexible implementation process.71 The right to selfsufficiency can be justified under the broader interpretation of the
ICCPR’s right to life,72 in which case state governments would be
required to take part in a timelier implementation. But this right (as it is
positive and more cultural, economic, and social in nature than it is
civil)73 fits more naturally under the ICESCR umbrella of rights. This
means that despite the right’s clear place as an emerging ICESCR right,
state governments would only be required to begin a gradual
enforcement of the right to self-sufficiency. But states would still be
required to fulfill the right as they are able, even under the ICESCR
alone. In fact, even the immediate implementation mandated by the
ICCPR allows for some flexibility in that all it requires is the state’s best
efforts, minimizing the state’s immediate obligations.74 These obligations
would be relatively easy to accomplish for the right to self-sufficiency
because the right only requires governments to provide an environment
susceptible to self-sufficient practices, not to give people the necessary
land, food, or fuel to be self-sufficient.75
Even if it takes time, state governments will be expected to take some
affirmative steps to implement the right to self-sufficiency.76 But the
international expectations for these state governments’ vigilance in
implementing the right will vary with the degree of each state’s
development.77 As mentioned earlier, various factors should be
considered when determining what “degree of vigilance” is required of
each government.78 Such factors would have to be considered in the right
to self-sufficiency’s implementation process, much like they are
71.
72.
73.
74.
75.
76.
77.
78.
See supra Part I.B.
See supra notes 51–56 and accompanying text.
See supra notes 30-37 and accompanying text.
See Dupuy, supra note 45, at 374-75.
See supra note 14 and accompanying text.
See sources cited supra note 28.
Dupuy, supra note 45, at 375.
Id. at 374-77 and accompanying text.
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considered when determining what states are required to do in the
process of implementing other human rights.
For instance, a state may not be liable for a natural disaster or a
national food shortage that clears out the state’s supermarket shelves for
long spans of time. But that state could be held accountable by
international committees if, before the emergency arose, the government
prevented people from taking the necessary steps to prepare themselves
or allowed private parties to impede such behavior.79 Then the people’s
lack of resources would be blamed on the state’s failure to allow people
to thrive self-sufficiently before disaster struck. Individuals and families
that could have aided themselves and their communities would have been
deprived of that opportunity. Instead, they would find themselves in a
catastrophic condition that could have been alleviated with positive
action beforehand from their state leaders.
Management, organization, and permits (which would allow people to
purchase and store certain levels of various resources in their quests to
living more self-sufficiently) are a few other issues that arise in the
context of determining a state’s responsibility to enforce a right to selfsufficiency. States have a standing obligation to manage and safeguard
their basic resources “for the benefit of present and future generations.”80
The right to self-sufficiency by no means requires states to give all
resources to whoever asks for them, nor does it allow anyone who wants
water or food or farmland to take as much as he wants. This free-for-all
system would lead to chaos or, potentially, anarchy. Rather, the right to
an environment of self-sufficiency would merely require states to
establish navigable permit systems and manageable safety standards for
an orderly distribution of their natural resources.
For example, if people wish to set up a water collection aquifer or
cistern on their land, the government must do more than sit back and
observe such efforts. Instead, the positive nature of the right to selfsufficiency would require state governments to guide people through a
reasonable permit process, finding a balance that would allow the water79. ICESCR, supra note 21.
80. Declaration of the United Nations Conference on the Human Environment,
Principle 2, U.N. Doc. A/CONF.48/14/Rev. 1 at 3 (1973) (“The natural resources of the
earth including the air, water, land, flora and fauna and especially representative samples
of natural ecosystems must be safeguarded for the benefit of present and future
generations through careful planning or management, as appropriate.”).
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129
collectors to achieve their goals and the government to keep track of
public waters. Another example in the fuel or energy storage realm
would be for the government to implement safety standards for storing
fuel—standards that are not impossible to abide by but are practically
necessary to prevent hazardous side-effects. More of these examples are
explored in Part III.
2. International Implementation: Hurdles and Solutions
One hurdle the right to self-sufficiency will have to clear on its way to
successful international realization is the fact that many states and people
worldwide are barely able to take care of today’s basic needs, let alone
provide for tomorrow’s.81 In other words, one out of every nine people in
the world are living a paycheck-to-paycheck life, barely making it to the
next day.82 These people are not augmenting their savings accounts to
save for “rainy days.”83 People and entire states living this way simply
cannot focus on refining people’s right to improve their standard of
living by bolstering their self-sufficiency capabilities. Three solutions
exist for these very real concerns, concerns that will surely be felt by
state leaders from the poorest and most underdeveloped nations.
The first solution involves varying degrees of implementation
expectations, as was briefly touched on in the previous section.84 Of
course some states (and their inhabitants) are years and decades away
from being able to realize the right to self-sufficiency because more
81. WORLD HUNGER EDUCATION SERVICE, 2015 World Hunger and Poverty Facts
and Statistics,
http://www.worldhunger.org/articles/Learn/world%20hunger%20facts%202002.htm (last
updated Nov. 22, 2015) stating,
The United Nations Food and Agriculture Organization estimates that
about 805 million people of the 7.3 billion people in the world, or one in
nine, were suffering from chronic undernourishment in 2012-2014.
Almost all the hungry people, 791 million, live in developing countries,
representing 13.5 percent, or one in eight, of the population of developing
counties.
Id.
82. Id.
83. See id. I mean this figuratively. Literal “rainy days” are both dreaded in those
states that have more water than they know what to do with and hailed in those states
which are perpetually in a drought season.
84. See supra notes 41–47 and accompanying text.
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fundamental rights are just barely being introduced. But a fear of being
overwhelmed by good intentions is no reason to abandon those
aspirations. The better approach is to recognize that the process must be
a gradual step-by-step approach. Also, state leaders must realize that they
are not alone, which brings me to the next solution: international
assistance.
Many states will need international assistance to get the selfsufficiency ball rolling. This right will vary by the needs and practical
capabilities of each state. For example, self-sufficient solutions in
developing countries will likely depend more heavily on local agriculture
and livestock.85 But solutions in more developed countries will probably
center more heavily on storage of fuel, energy, food, and water.86 In other
words, the right to live in an environment of self-sufficiency is a flexible
right, achievable based on the needs and solutions appropriate for the
individual states. Whether people choose to use their right to selfsufficiency to prepare for disasters or just to live more self-reliantly,
some aspects of self-sufficient living are more reasonable in certain
states and communities than in others. When implementing the right,
governments can take into account the potential, yet probable benefits
from certain self-sufficient practices and the expected expense and
practical difficulties from these practices. And state governments can
weigh the two competing concerns against each other before arriving at a
reasonable conclusion.
Finally, foreign aid has made up a hefty portion of every U.S.
president’s international agenda for decades.87 What better “aid focus” is
85. See supra notes 1-14 [introduction] and notes 92-139 [Part III] and
accompanying text.
86. See supra notes 92-139 [Part III] and accompanying text.
87. The spectrum of foreign aid policies includes various policies. See Mary Beth
Sheridan, Obama to Announce New Foreign-Aid Policy, WASH. POST (Sept. 21, 2010),
http://www.washingtonpost.com/wpdyn/content/article/2010/09/21/AR2010092106185.html (reporting on President Obama’s
announcement to the UN Millennium Development Goals Summit); USAID History,
USAID, http://www.usaid.gov/who-we-are/usaid-history (last updated May 28, 2015)
(celebrating President Kennedy’s establishment of the U.S. Agency for International
Development
(USAID));
Truman
Doctrine
is
Announced,
HISTORY,
http://www.history.com/this-day-in-history/truman-doctrine-is-announced (last visited
Mar. 13, 2015) (discussing the Truman Doctrine during the Cold War which granted U.S.
aid to “Greece and Turkey to forestall communist domination of the two nations”).
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there than on the aided state’s self-sufficient development? The most
effective U.S. aid is that which promotes programs and systems that will
enable foreign independence from aid.88 The United Nations can also
come together to provide assistance to developing nations by
transforming these human rights goals into realities. U.N. organizations
such as the U.N. Department of Economic and Social Affairs89 and the
U.N. Environment Programme90 are already undertaking this challenge.
But more is needed to incorporate the U.N.’s plan for Sustainable
Development, Agenda 21.91 Through these international programs and
aid plans, the right to self-sufficiency can be realized in all states, with
time and adequate funding.
88. See Tony Blair & Kate Gross, From Dependency to Self-Sufficiency,
STANFORD SOCIAL INNOVATION REVIEW, Winter 2013,
http://www.ssireview.org/articles/entry/from_dependency_to_self_sufficiency; see also
Food Assistance Increases Self-Sufficiency in Kenya: Farmers Learn New Methods to
Address Climate Change, USAID, http://www.usaid.gov/results-data/successstories/innovative-food-assistance-reduces-need-humanitarian-aid-kenya (last updated
April 30, 2014). A U.N. World Food Program (“WFP”) project makes food assistance
conditional on participation in programs that boost food security and self-sufficiency. In
southeastern Kenya, farmers are irrigating their crops with water from the Athi River by
using donkeys to carry water from the river to their farms. WFP is teaching farmers
simple skills such as creating sunken crop beds that help retain water.
In exchange for participating in this project, the farmers receive rations of
either food or cash to help meet their food security needs during the
hungry season before the harvest . . . . [The] farmers learn new skills on
communal land where they are each allocated a plot. They can then
apply their skills on their individual farms. By adopting simple but more
effective technologies to make better use of water in this semi-arid area,
farmers are able to grow enough food for their families . . .
Id.
89. U.N. Department of Economic and Social Affairs, UN,
http://www.un.org/en/development/desa/index.html (last visited Apr. 21, 2014).
90. U.N. Environment Programme, UNEP, http://www.unep.org/ (last visited
Mar. 13, 2015).
91. U.N. Conference on Environment and Development, Agenda 21, U.N. Doc.
A/CONF.15¼ (Part II) (June 3-14, 1992), available at
https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf.
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III. POTENTIAL LEGAL CLASHES WITH DOMESTIC IMPLEMENTATION OF
THE RIGHT TO SELF-SUFFICIENCY
Enforcing the right to self-sufficiency would not be an easy task, even
in the world’s most developed countries. This section examines potential
legal hurdles facing the right’s enforcement in the United States. This
U.S. case-study provides a more complete understanding of the qualities
and limitations of this emerging right.
The United States has not unequivocally agreed to enforce the
economic, social, and cultural rights enumerated in the ICESCR (by
signing but failing to ratify the treaty).92 In other words, the CESCR does
not monitor the United States’s implementation of the ICESCR because
absent ratification, the United States is not yet bound by the terms of that
treaty.93 Despite the United States’s failure to ratify the ICESCR, an
analysis of the right to self-sufficiency and its implementation still adds a
theoretical understanding of how the right to self-sufficiency would play
out in a developed nation. Additionally, this section provides a starting
point for implementation of this right if the U.S. government decides to
recognize the right to self-sufficiency and other ICESCR rights in the
future—a highly possible outcome if the ICESCR can be seen in a new
light.94 Alternatively, if self-sufficiency can be couched as a civil right
under the ICCPR, as discussed earlier,95 these implementation difficulties
and solutions could be deemed national concerns with a need for
immediate resolution. So the United States (under a broad interpretation
of the right to life) arguably already has an obligation to begin
implementing the right that its citizens have to live in an environment
where self-sufficiency is feasible.
92. See Barbara Stark, At Last? Ratification of the Economic Covenant As A
Congressional-Executive Agreement, 20 TRANSNAT’L L. & CONTEMP. PROBS. 107, 136–
37 (2011) (arguing that the United States should ratify the ICESCR “because economic
rights are what the United States lacks as a nation and what Americans hardly have words
for, just as those in other states hardly have words for the civil liberties that many take for
granted here”); Piccard, supra note 30, at 231.
93. See Philip Alston, U.S. Ratification of the Covenant on Economic, Social and
Cultural Rights: The Need for an Entirely New Strategy, 84 AM. J. INT’L L. 365, 365–66
(1990).
94. See Haley Jankowski, The International Covenant on Economic, Social and
Cultural Rights: A New Conception (forthcoming publication).
95. See supra notes 36, 51-57 and accompanying text.
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133
Regardless of the prevailing interpretation of the right to selfsufficiency as an ICESCR or ICCPR right, this section contributes a
valuable analysis of the right’s contours and potential barriers. First, it
discusses the possible (but minimal)96 fight that the government would
put up against the right to food and water storage and collection. Second,
Section B discusses the right’s inclusion of fuel and energy storage and
its accompanying problems. Finally, this section ends with a discussion
of the practical implications of the individual right to farm and raise
livestock.
A. Food and Water Storage and Collection
The right to self-sufficiency would require the U.S. government to
enable all people to store adequate amounts of food and water.
Additionally, state governments would need to implement reasonably
navigable permitting programs to allow some degree of individual water
collection. In fulfilling its duty to allow people the opportunity to
sufficiently collect and store enough food and water, the government
may present some resistance based on a few existing legal clashes with
this right. But while these clashes may exist, they can be overcome. The
solution would allow people to have enough for their basic needs without
disturbing other state safety and health laws.
First, will the government have any issues with the right to maintain a
self-sufficient food storage? A person’s right to keep a backup supply of
food to enable them to live self-sufficiently during an emergency already
exists in the United States and, in fact, it is currently encouraged by the
government.97 But occasionally, especially in the context of national
emergencies, even the U.S. government threatens its people’s ability to
keep personal food stores. For example, near the end of his first term,
President Obama signed Executive Order 13603.98 This order authorized
96. But see infra section III.A (outlining the potential problems people may run
into when trying to assert their right to water collection, especially in arid regions).
97. See Food and Water in an Emergency, FEMA 2-4 (Aug. 2004),
http://www.fema.gov/pdf/library/f&web.pdf.
98. Press Release, The White House, Office of the Press Secretary, National
Defense Resources Preparedness (Mar. 16, 2012), available at
https://www.whitehouse.gov/the-press-office/2012/03/16/executive-order-nationaldefense-resources-preparedness.
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the government to take control of resources during declared national
emergencies,99 “including the ability to seize, confiscate or re-delegate
resources . . . as deemed necessary or appropriate to promote the national
defense.”100 So although Congress has not yet enacted laws that bar
people from storing food under everyday circumstances, various
Presidents have signed executive orders that could stand in the way of a
resident’s right to store food.101
Perhaps more vital to self-sufficient human survival than food is a
person’s individual consumption and storage of water.102 Despite its
uncontested importance, the government will likely have a more difficult
time guaranteeing the right to store and collect an adequate supply of
water than it will have protecting food storage. Various water laws have
been enacted over the years to preserve the public resource of water,
particularly in the more dry and arid western half of the United States.103
Some of these laws have made it difficult for individuals to collect storm
water in personal cisterns or aquifers.104 For example, a few states have
started regulating and disallowing mere rainwater collection:
“Washington and some other states have started to manage precipitation
and stormwater runoff as a beneficial resource, rather than treating it as a
waste stream” and allowing its citizens to capture and store it.105 But, as
99. Id.
100. Mac Slavo, They Will Seize Your Food and Resources: “Hoarding of Just
about Anything Can be Banned”, SHTFPLAN (July 1, 2013),
http://www.shtfplan.com/headline-news/they-will-seize-your-food-and-resourceshoarding-of-just-about-anything-can-be-banned_07012013.
101. For a historical example, see Exec. Order No. 10998, 27 Fed. Reg. 1524 (Feb.
16, 1962) (revoked by Exec. Order No. 11490, 34 Fed. Reg. 17567 (Oct. 28, 1969)).
102. Corey Binns, How Long Can a Person Survive Without Water?, LIVE
SCIENCE (Nov. 30, 2012), http://www.livescience.com/32320-how-long-can-a-personsurvive-without-water.html.
103. See William S. Platts & Sherman Jensen, Wetland/Riparian Ecosystems of the
Great Basin/Desert and Montane Region: An Overview, in GREAT BASIN/DESERT AND
MONTANE REGIONAL WETLAND FUNCTIONS, PROCEEDINGS OF A WORKSHOP HELD AT
LOGAN, UTAH 1, 6, 13, 15 (Feb. 27-28, 1986).
104. Granted, none of these water laws have prohibited buying water in bulk from
grocery stores and storing that water. This practice could be a solution for maintaining a
self-sufficient water storage in the United States, but only in either (1) big cities where
such water is accessible; and/or (2) times where water is easily available via this
method—so not in times of scarce water supply.
105. Jeff Kray & Mandie MacDonald, Rain, Rain, Store Away, Use Again Another
Day, ABA WATER RESOURCES COMMITTEE NEWSL. (ABA), Nov. 2009, at 23, 26.
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with all big changes, many ramifications should “be considered in
utilizing precipitation as a water source, including impacts to
groundwater, impacts to surface water to which such runoff may be
tributary, health concerns associated with a private water source, and
regulatory compliance.”106
Additionally, the United States could not simply issue one type of
enforcement for the whole country because water levels vary so
drastically state-by-state. One report summarized the water law regimes
of eighteen western states, focusing on the issue of water reuse policies
in the west.107 These summaries showed that the extent to which water
reuse occurs and the assorted “factors that encourage or impede it vary
considerably depending upon the individual circumstances of each
state.”108 Further, even western states that share similar arid conditions,
have a great variety of regulatory programs: “some states have highly
developed regulatory programs specific to reuse, while others may not
have any programs and may lack a statutory or regulatory definition for
the practice.”109 But even with their differences in water law regimes, the
“states reported various common barriers, including inflexible and
duplicative regulations, concerns about how to protect senior water
rights, lack of funding, and health concerns among the general public.”110
These are the kinds of concerns that all state governments will have to
deal with when determining how to assure the right to self-sufficient
water storage and collection for every person. Also, many states model
run-off irrigation and draining systems based on a public free-run-off
regime.111 Thus, there would likely be a lot of governmental opposition
to allowing any amount of private collection of a public resource.
But a viable solution exists for this administrative difficulty: issuing
state permits for collecting water and making those permits more
106. Id.
107. Nathan S. Bracken, Water Reuse in the West: State Programs and
Institutional Issues. A Report Complied by the Western States Water Council, 18
HASTINGS W.-N.W. J. ENVTL. L. & POL’Y 451, 456 (2012).
108. Id.
109. Id.
110. Id. For more details on health concerns/problems associated with the
possibility of creating standing water, see James Salzman, Is It Safe to Drink the Water?,
19 DUKE ENVTL. L. & POL’Y F. 1, 38 (2008).
111. See Bracken, supra note 107.
136
[Vol. 24.1
accessible to the everyday water-user. One way to smooth out the permit
process to make it more “navigable,” is for states to implement rainwater
harvesting laws. Currently, twelve states have enacted such laws, with
the purpose of “utilizing a collection system to use rainwater for outdoor
uses, plumbing, and, in some cases, consumption.”112 These laws can
promote water collection projects at the individual and manageable scale,
while still allowing the government to successfully monitor water rights.
Furthermore, a state-by-state permitting system would eliminate
difficulties that a nationwide federal plan would unavoidably face. If
each state proceeds with its own permitting system, each can address the
needs of its own populations while simultaneously considering its
individual availability of water. Truly, such a system would model
federalism at its best.
B. Fuel and Energy Storage
The right to self-sufficiency would require governments to allow their
citizens to store reasonable amounts of fuel and to create their own
energy (solar, wind, etc.). Reasonability should be determined, in this
context, by weighing preparedness and sufficiency benefits against safety
concerns.
Regarding these safety concerns, the government will want to be
careful to avoid creating more problems than it would solve by allowing
fuel storage. In fact, several examples of state laws and regulations that
inhibit personal fuel storage already exist, and for good reason.113 These
safety restrictions include limitations on maximum storage for fuel114 and
112. State Rainwater Harvesting and Graywater Laws and Programs, NATIONAL
CONFERENCE OF STATE LEGISLATURES (Sept. 1, 2013),
http://www.ncsl.org/research/environment-and-natural-resources/rainwaterharvesting.aspx. The twelve states that have implemented rainwater harvesting laws are
Washington, Oregon, Utah, Arizona, Colorado, Oklahoma, Texas, Illinois, Ohio,
Virginia, North Carolina, Rhode Island. Id.
113. Emergency Home Fuel Storage Limits and Guidelines, KAYSVILLE CITY FIRE
DEPARTMENT (Apr. 20, 2011), available at
http://www.kaysvillecity.com/img/File/Home%20Fuel%20Storage.pdf
[hereinafter KAYSVILLE CITY FIRE DEPARTMENT].; Illinois Gasoline Storage Act, 430 ILL.
COMP. STAT 15/2 § 4(b) (West 2007).
114. BRENTWOOD, TENN., CODE OF ORDINANCES, PART II Ch. 26, art. III, § 26-67
(July 26, 2015), available at http://library.municode.com/index.aspx?clientId=12774;
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rules about where to keep the fuel.115 For instance, in some places, fuel
can only be stored in detached sheds but not in homes or attached
garages.116 While many of these restrictions are necessary to keep people
safe, they also make it difficult for people who can barely afford extra
fuel because they would impose an extra cost of building detached
storage facilities in which to store the fuel.117 The solution to these safety
regulations barring self-sufficient fuel storage is not to abandon safety
concerns. Rather, federal and state governments should focus on creating
financial incentives (like tax breaks or credits) for people who wish to
store fuel. This way, the government could actively encourage people to
store fuel, despite the safety regulations with which fuel-collectors will
have to conform.
An additional problem may arise if people began making individual
efforts to rely on renewable energy sources. The shift away from reliance
on public utility companies and toward “green” houses and cars may
burden state and local governments who administer these power
companies. For example, the Environmental Protection Agency (“EPA”)
“has recently banned the production and sale of 80 percent of America’s
current wood-burning stoves, the . . . mainstay of rural homes and many
of our nation’s poorest residents.”118 While wood is not the “greenist”
method available, it is probably still the cheapest source of fuel that is at
least renewable at an individual level, and the EPA’s ban “will affect
many families.”119 “According to the U.S. Census Bureau’s 2011 survey
Gwen Shamblin, Additional Information on Residential Fuel Storage from the Remnant
Fellowship Ministries Team, REMNANT MINISTRIES FELLOWSHIP (Nov. 29, 2012),
http://www.remnantfellowshipministries.com/additional-information-on-residential-fuelstorage/ (discussing city code stating a very low maximum for residential storage of
flammable liquids at 25 gallons).
115. KAYSVILLE CITY FIRE DEPARTMENT, supra note 113.
116. Id.
117. Besides, even if you could afford to build a shed for fuel storage, your local
ordinances may not allow the project due to zoning laws or deed restrictions. Matt Sailor,
Ten Deed Restrictions That Could Ruin Your Dream Home, #5: Adjacent Structures,
HOW STUFF WORKS (Feb. 21, 2011), http://home.howstuffworks.com/real-estate/buyinghome/10-deed-restrictions.htm#page=6.
118. Larry Bell, EPA’s Wood-Burning Stove Ban Has Chilling Consequences for
Many Rural People, FORBES, Jan. 29, 2014, available at
http://www.forbes.com/sites/larrybell/2014/01/29/epas-wood-burning-stove-ban-haschilling-consequences-for-many-rural-people/.
119. Id.
138
[Vol. 24.1
statistics, 2.4 million American housing units (12 percent of all homes)
burned wood as their primary heating fuel, compared with 7 percent that
depended upon fuel oil.”120 While these regulations are set in place to
maintain the environment by improving air quality, they make fuel
storage very difficult if not impossible for the middle and lower classes
in the United States.121
Thus, real safety and environmental concerns regarding fuel storage
undeniably exist, but the government should still incentivize storing fuel
publicly and even financially so it is feasible for people to assert their
right to self-sufficiency. In the long-run, incentivizing people to take
self-sufficient preparatory actions will inevitably help the government
because people will be able to take care of themselves in times of
disaster and great need. Also, more resources will be conserved, so these
incentives would solve more environmental problems than they could
possibly cause.
C. Agriculture and Livestock Cultivation
The final primary component of the right to self-sufficiency is the
right of all individuals to cultivate their own land and to, within reason,
raise livestock. Just like all property privileges, people could only
exercise their right to live self-sufficiently inasmuch as their exercises do
not unreasonably interfere with the rights of surrounding property
owners.
Granted, providing an environment in which people can raise
agriculture and livestock is probably more of a solution in developing
nations and rural lands,122 rather than heavily urbanized populations. But
farming one’s own lands is still a right that even the smallest of
landowners should be able to take advantage of. Even if the food they
120. Id.
121. Notably, the EPA’s regulation of wood-burning stoves did not ban the
practice entirely. Instead, its purpose is to push people to use more efficient forms of
heat-generators, including more environmentally friendly and technologically advanced
wood-burning stoves (the 20 percent not banned). But for self-sufficiency purposes
before making this decision, the government must first weigh the value of affordable heat
generation against maintenance of clean air. The right to self-sufficiency ensures that
these two goals are balanced and require the government to find and execute the middle
ground.
122. See supra notes 1, 81.
2015]
139
grow would not necessarily provide a fully self-sufficient source of food,
it is still a source of self-sufficient living that all people should be
entitled to carry out under this emerging right.
Some laws already exist in the United States to protect people’s right
to farm their own land; such laws are aptly named “Right to Farm
Laws.”123 These laws pave a solid step on the road to establishing a right
to self-sufficiency, but they do not go quite far enough to enable the
widespread right to farm one’s own land that the right to self-sufficiency
entitles. Right to farm statutes should limit local governments’ capacities
to regulate agriculture.124 Instead, most merely defer to municipal
regulations, allowing local governments to add regulations and thereby
inhibit people’s right to farm.125
Also, to conform to the emerging right to self-sufficiency, state
governments would need to broaden the scope of their right to farm acts
to include smaller-scale agriculture in their protections. For instance:
123. See Elizabeth R. Rumley, States’ Right-to-Farm Statutes, NATIONAL
AGRICULTURE LAW CENTER, http://nationalaglawcenter.org/state-compilations/right-tofarm/ (last visited Mar. 13, 2015) (including a compilation of states’ right-to-farm laws).
124. See UTAH CODE ANN. § 17-41-402 (West 1953) (“A political subdivision may
not change the zoning designation of or a zoning regulation affecting land within an
agriculture protection area unless the political subdivision receives written approval for
the change from all the landowners within the agriculture protection area affected by the
change.”). Other states also have local authorities preemption clauses in their codes. See
ALA. CODE § 6-5-127(a) (1975); ALASKA STAT. ANN. § 09.45.235(c) (West 1986); ARK.
CODE ANN. § 2-4-105 (West 2005); CAL. CIV. CODE § 3482.5(d) (West 1981); COLO.
REV. STAT. ANN. §35-3.5-102(5) (West 1981); FLA. STAT. ANN. § 823.14 (West 2012);
IDAHO CODE ANN. §§ 22-4501-22-4504 (West 1981); KY. REV. STAT. ANN. § 413.072
(West 2010); LA. REV. STAT. ANN. § 3:3607 (2008).
125. States with no preemption clause regarding local/municipal authorities in
their right-to-farm statutes or states that defer to municipal law include: Arizona (ARIZ.
REV. STAT. ANN. § 3-112 (1981)); Connecticut (CONN. GEN. STAT. ANN. §19a-341(a)
(West 2011)); Delaware (DEL. CODE ANN. tit. 3, § 1401 (West 2010)); Georgia (GA.
CODE ANN. § 41-1-7 (West 2007)); Hawaii (HAW. REV. STAT. §§ 165-1-165-6 (West
1982)); Illinois (740 ILL. COMP. STAT. 70/0.01-70/5 (West 1990)); Indiana (IND. CODE
ANN. §§ 32-30-6-1–32-30-6-1.5, 32-30-6-9, 32-30-6-11 (West 2002)); Iowa (IOWA CODE
ANN. §§ 352.1-352.12 (West 1993)), Kansas (KAN. STAT. ANN. §§ 2-3201-2-3204 (West
1982)); Texas (TEX. AGRIC. CODE ANN. § 251.004(c) (West 1981)); Washington (WASH.
REV. CODE ANN. §§ 7.48.300–7.48.320 (West 1979)).
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[Vol. 24.1
A typical Right-to-Farm Act provides that an agricultural operation or
activity shall not be considered a nuisance if the nuisance derives from
changed conditions in the area surrounding the operation and if the
operation was established first and operated for a defined period of
time, typically one year, before the change in conditions occurred.126
Thus, while Right to Farm acts do protect farming to a certain extent,
they do not go far enough either to bar local governments from infringing
on people’s right to farm or to include smaller-scale farmers in their
protection.
One protection included in Right to Farm statutes that should be
expanded to smaller agriculture projects and, in some degree, to
livestock-raising ventures, is a general protection for these people against
nuisance lawsuits.127 States should broaden the reach of these antinuisance lawsuits to encourage small-scale farming as this state action
would enable people to exercise their right to live self-sufficiently. Such
reforms have already been advocated in the area of clean energy—
scholars have argued that green energy projects should also be protected
from anti-nuisance lawsuits under a Right to Farm system.128
Another bar to self-sufficient agriculture is local government zoning
regulations.129 “Zoning is the traditional and nearly ubiquitous tool
126. Harrison M. Pittman, Validity, Construction, and Application of Right-toFarm Acts, 8 A.L.R. 6th 465 (2005).
127. All fifty of the United States have passed their own versions of Right to Farm
laws to protect farming and ranching businesses from being overrun by nuisance lawsuits
filed by incoming neighbors. See Rumley, supra note 123.
128. Tyler Marandola, Comment, Promoting Wind Energy Development Through
Antinuisance Legislation, 84 TEMP. L. REV. 955, 956 (2012) (“This Comment argues that
wind energy projects should be protected from nuisance lawsuits, much like agricultural
facilities are protected under the Right-to-Farm (RTF) regime.”).
129. Perhaps in some cases, the solution under a right to self-sufficiency is just for
people to move away from these zoning regulations. But whether this is the best solution
depends on a variety of factors including: what a person intends to use the land for; what
surrounding land is used for; and to what degree the person’s self-sufficiency goals
would infringe upon the right and enjoyment of nearby landowners. If under the selfsufficiency right’s balancing test, the proposed self-sufficient behavior would
unreasonably infringe on surrounding owners’ land use, then it seems the only solution to
appease both parties would be for the former to move. However, if the self-sufficient
behavior proposed is minor and could be managed without unreasonably impacting
neighbors, the zoning regulation should be changed, negating the need for anyone’s
move.
2015]
141
available to local governments to control the use of land.”130 While such
regulation is meant to benefit general aesthetics (and occasionally safety)
of a neighborhood, it often bars self-sufficient practices like gardening or
raising a personal store of livestock, especially in more residential
areas.131 A few categories that these types of local regulation can police
include restrictions of “the style of home that you build, the number and
type of outbuildings, limits on ‘for profit’ agriculture and the size of
garden plots, livestock raising, timber harvesting, operation of a homebased businesses, pond and road construction, and hunting or target
shooting on your own land.”132
One example of a municipal government infringing too far on a
person’s right to cultivate his land under the emerging right to selfsufficiency occurred in DeKalb County, Georgia.133 This county issued a
$5,000 fine to local resident Steve Miller for growing too many organic
vegetables on his land.134 In Miller’s case, vegetable-growing was
130. DANIEL A. FARBER ET AL., DISASTER LAW AND POLICY 351 (2d ed. 2010)
(quoting Anna K. Schwab & David J. Brower, Increasing Resilience to Natural Hazards:
Obstacles and Opportunities for Local Governments under the Disaster Mitigation Act of
2000, in LOSING GROUND: A NATION ON EDGE 283–301 (John Nolon & Daniel Rodriguez
eds., 2007)).
131. Many zoning laws and restrictive housing codes have “become outdated or
excessively complex as they are amended piecemeal in response to, among other things,
growing human populations, expanding resource demands, and a shrinking resource
base.” Julie Pennington, Zoning for Sharing, in PRACTICING LAW IN THE SHARING
ECONOMY 519 (2012). So people who wish to engage in self-sufficient behavior by
gardening or raising small-scale livestock, but who are barred from doing so by local
ordinances, need to look carefully at these “codes to distinguish between unnecessary or
discriminatory barriers to environmentally and socially beneficial housing solutions and
codes that are needed to protect resources and infrastructure.” Id. at 520.
132. Zoning Laws, HOAs, and CC&Rs as Criteria for Choosing Your Retreat
Locale, SURVIVALBLOG.COM, http://survivalblog.com/zoning_laws_hoas_and_ccrs_as_c/
(last visited Mar. 13, 2015).
133. Matt Steinglass, Where Growing Too Many Vegetables Is Illegal, THE
ECONOMIST (Oct. 3rd, 2010),
http://www.economist.com/blogs/democracyinamerica/2010/10/weird_zoning_laws.
134. Id. For an insight regarding the expectation of privacy concerns that Miller’s
plight raises, see You Couldn’t Make It Up! Georgia Man Fined $5000 for Growing
Vegetables, INFOWARS (Sept. 16, 2010, 4:04 PM), http://www.infowars.com/youcouldn%E2%80%99t-make-it-up-georgia-man-fined-5000-for-growing-vegetables/.
To compare this to a parallel, Canadian example of farm owners facing potential jail
time, see One-Acre “Farm” Owners Face Jail in Lantzville, British Columbia, FOOD
142
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135
previously barred in urban areas by existing zoning regulations, despite
the fact that small vegetable gardens do not create many of the issues that
may arise with livestock ranches.136 It follows that while zoning laws and
regulations can still be affectively carried out without violating people’s
right to self-sufficiency to some extent, currently many of these
regulations go too far in barring self-sufficient practices. These practices
should be protected and encouraged by the government under the
emerging human right to live in a self-sufficient environment.
While the right to self-sufficiency may face some legal barriers in the
agricultural context, it is supported by recent national trends moving
toward a more organic and self-sustaining culture, even in urban areas.
For example, the trend toward legalizing backyard chicken farming is
spreading.137 This trend toward a more organic lifestyle can also be seen
within the context of personal beekeeping.138 But several urban areas
continue to reject this trend due to concerns such as noise, expense,
smell, damage to gardens and lawns, and predator attraction.139 While
these are valid concerns, in most instances they are outweighed by the
benefits of raising livestock and cultivating agriculture. For example,
people will have more food security with a constant, neighborhood food
source providing a priceless peace of mind for the owners and their
FREEDOM (July 21, 2011), http://foodfreedom.wordpress.com/2011/07/21/1-acre-farmowners-face-jail-in-lantzville-bc/.
135. For a more in-depth discussion on the types of existing urban agriculture
bans, see Sarah B. Schindler, Of Backyard Chickens and Front Yard Gardens: The
Conflict Between Local Governments and Locavores, 87 TUL. L. REV. 231, 239–44
(2012).
136. See Steinglass, supra note 133.
137. Stephen Briggs Jr., Should Backyard Chickens Be Legal in Urban Areas?,
NORTH KINGSTOWN PATCH (Jan. 10, 2013),
http://northkingstown.patch.com/groups/stephen-briggs-jrs-blog/p/bp--should-backyardchickens-be-legal-in-urban-areas (identifying the decision of Providence, Rhode Island to
“legalize raising small backyard chicken flocks”).
138. Kim Flottum, Which Cities Have Legalized Beekeeping?, THE DAILY GREEN,
Dec. 2, 2010, available at
http://www.thedailygreen.com/environmental-news/blogs/bees/legalized-beekeeping. In
2010, New York City legalized beekeeping, and in 2012 the practice had already
“exploded” to such an extent that many began “to question whether the city [could]
sustain the increasing number of hives.” Stephen Nessen, Two Years After Legalized
Beekeeping, City May Be Running Short on Forage, WNYC NEWS (June 25, 2012),
http://www.wnyc.org/story/218358-urban-bees-may-be-running-out-foraging-ground/.
139. See Briggs, supra note 137.
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143
neighbors. They know that even if a market shortage occurs, they will at
least have one local food source to rely on. This security in an immediate
and long-term food supply outweighs the concerns regarding chicken
farms and beekeeping arenas, especially if they are subject to reasonable,
but not over-restrictive regulations.
Looking at the big picture of the right to self-sufficiency’s
enforcement in the United States, it is clear that the right will quite
possibly face some barriers in the areas of agriculture and livestockraising, but none of them will be impossible to overcome. In actuality,
people nationwide, even in urban communities, are already moving in an
organic direction, so these recent trends bare many similarities with the
general goal of self-sufficiency, and, accordingly, they support the
implementation this right.
CONCLUSION
The international human right to self-sufficiency is on the horizon. It
has a textual basis in the earliest international treaties, and the need for
its widespread recognition is constantly growing. Granted, states will
have to make a few necessary adjustments to employ the right to selfsufficiency and to meet the various enforcement duties. Some steps in
this process will be challenging, as is the case with every new right or
proposal. But as this article discusses, these hurdles are far from
insurmountable. Instead, states and people worldwide will be better off
having faced and overcome the challenges accompanying this right.
The right to live in an environment of self-sufficiency fits into the
backdrop of human rights law as either an offshoot of the ICESCR rights
to work and to an adequate standard of living or as part of the ICCPR
right to life. The contours of the self-sufficiency right can be summarized
into three primary categories: (1) Food and Water Storage and
Collection; (2) Fuel and Energy Storage; and (3) Agriculture and
Livestock Cultivation. Furthermore, the right to self-sufficiency can be
enveloped into a global implementation framework, and it should be
because people everywhere need to feel protected in their efforts to
sustain themselves through natural, terrorist, or even financial disasters.
Part III hypothesized the shape that this emerging right may take, and
in doing so it recognized and dealt with potential legal and political
problems that could arise with enforcing this right in the United States.
But while governmental implementation of this right may be difficult,
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[Vol. 24.1
the effort will prove worthwhile to state governments because the right’s
implementation can save their people. Just as Luki Muia’s Kenyan
family and the Sochacki’s New Jersey family found personal success and
recovery through exercising their self-sufficient inclinations, many more
people throughout the world will be able to find similar success by
exercising their rights to self-sufficiency. But first, state governments
need to fulfill and protect this right by openly recognizing it on the
international stage.

Visualizing an International Human Right to Self-Sufficiency

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